December 02, 2013

Beginning today, lawyers will have to change the way they cite cases in briefs to the U.S. Court of Appeals for the Fifth Circuit. New Fifth Circuit Rule 28.2.2 now requires that every assertion in briefs regarding matters in the record “must be supported by a reference to the page number of the original record, whether in paper or electronic form, where the matter is found, using the record citation form as directed” by the clerk of court.

November 27, 2013

The phones at David Komie’s firm have been ringing off the hook since he launched a billboard campaign around Austin about 18 months ago. The 10 billboards feature a portrait of Komie in a leather jacket with his shoulder-length hair twisted in thick dreadlocks. His name is written in all caps in a death-metal font, followed by the slogan, “The Attorney That Rocks.”

“People either love it or hate it, but they definitely notice it, and they are definitely talking about it,” said Komie, partner in Komie & Morrow in Austin. “There’s lots of times at my little firm that our phone is ringing incessantly, and we’re six lines deep.”

Komie lives up to the billboard’s “super rock-and-roll” image, as the lead singer in the hard-rock band, Dharma Kings. Aside from bringing in new personal-injury cases, the billboards attracted a reality TV crew that wants to produce a show about Komie. The advertisements also brought success for the band, which is signing a record-label contract and has booked increasingly bigger shows, he said.

When asked why the ads brought so much legal business, Komie replied that he thinks most lawyers are “invisible” with the same haircut, outfit, speech and interests. Komie is clearly different.

“My advertisement is who I am, plain and simple. I just have to get that out there for people,” he said. “Everywhere that you go, there’s some closet individuals that don’t trust the regular lawyers. If I only get 2 percent of that market, I’ve got more business than I can handle.”

Within his firm, Komie said he tries to avoid “prejudice” from judges and other lawyers. His partner and associates go to court and meet in person with opposing counsel. Komie supervises and directs the firm’s litigation and spends a lot of time with clients.

“I’m very passionate for the clients,” Komie said. “I truly understand what I do gives me the privilege and honor to help people, regular people, during the hardest time of their life.”

November 26, 2013

He stopped practicing law full time and devoted himself to a new life goal: to launch a yoga program for inmates in every prison in Texas.

“The people I want to help are the ones who have been thrown away, the ones that are in there forever,” said Freeman, founder of Conviction Yoga in Austin. “It’s a desire to improve life inside that pushes my button.”

Eventually, he wants to organize Conviction Yoga as a nonprofit and conduct fundraising that will support prison yoga teachers across Texas. For now, three days per week he drives around the state to towns with “clusters” of prisons. He can visit three prisons in one 16-hour day.

Freeman, a practicing Buddhist, teaches the inmates yoga as a meditation technique to focus their minds on the sensations in their bodies. He often leads his students through repetitions of Sun Salutation, a yoga move which starts with a person extending his arms to the side and overhead before bowing to touch his toes. But many inmates must alter the move to practice in their cells.

“I always ask them, ‘What does your cell look like?’ Some of them have big cells; some of them have very small cells,” explained Freeman. “The front of your yoga mat is bars, and the back of your yoga mat is where the sink and toilet is.”

Freeman said he thinks inmates suppress their emotional sides because of trauma from growing up in troubled homes, leading a life of crime and living among prison violence. He said that yoga allows inmates to release their traumas and reconnect with their feelings.

“What yoga has done for me is open me up and not only show me I can feel again but that I want to feel again,” said Freeman. “That’s really what I want to help them cultivate: the ability to have compassion.”

November 25, 2013

The U.S. Supreme Court has announced when it will hold oral arguments in two important patent-infringement cases, including one from Texas: Feb. 26, 2014. The pair of disputes will determine how much discretion trial courts have in determining what constitute "exceptional cases." Those involve frivolous-claim findings that allow prevailing parties to recover reasonable attorney fees.

In Highmark Inc. v. Allcare Health Management Systems, U.S. District Judge Terry Means of the Northern District of Texas in Fort Worth awarded a defendant more than $5 million in attorney fees after finding some of the plaintiff's claims were frivolous. Means ruled that the case qualified as "exceptional" under 35 U.S.C. §285 after concluding that Allcare allegedly had pursued frivolous infringement claims and asserted meritless legal positions during the course of the litigation.

The U.S. Court of Appeals for the Federal Circuit affirmed one of Means' "exceptional" findings but reversed another. The Federal Circuit also reversed Means' attorney fee award, because he did not specify the amount of fees were tied to his specific "exceptional" findings.

In the other patent case, Octane Fitness v. Icon Health & Fitness, the U.S. District Court for the District of Minnesota denied a prevailing party's motion for an "exceptional" finding under §285, a decision the Federal Circuit affirmed. The issue in Octane is whether the Federal Circuit's two-part test for determining whether a case is exceptional contravenes §285's intent by raising the standard for accused infringers—but not patentees—to recoup attorney fees and encourages patent plaintiffs to bring spurious cases to cause competitive harm or coerce unwarranted settlements.

November 22, 2013

If your family's roots in North Texas are deep enough, chances are at least one person has a connection to the horrible day 50 years ago, when assassin Lee Harvey Oswald fatally shot President John F. Kennedy on Nov. 22 and wounded Texas Gov. John Connally in downtown Dallas.

Texas Supreme Court Justice Don Willett’s family claims a couple of connections, but none is closer than his grandmother, Myrtis Mallard. Mallard, who passed away in 1999, was a nurse at Dallas’ Parkland Hospital for many years, Willett writes in an e-mail.

“She was working the day President Kennedy was assassinated, lending a hand in the ER. I was told she helped care for Governor Connally and that for years afterward he would send her flowers,” Willett writes. “Thirty-three days before the assassination, she had helped deliver Lee Harvey Oswald's second daughter, Rachel, who later became a nurse herself ...,” Willett writes, adding that “Mamaw Myrt” soon got on the phone to tell his mother the horrible news.

“My mom was waitressing at the Adolphus Hotel, along the motorcade route, and my grandmother called her from Parkland to whisper the tragic, not-yet-public news that President Kennedy had indeed passed away. My mom was in disbelief, as the president had just passed by the Adolphus a few minutes earlier,” Willett writes.

Texas Lawyer recently recognized our top 2013 Litigation Departments of the Year. The editorial department undertook this project as a way to recognize Texas litigation departments whose accomplishments last year distinguished them from their peers. The profiles of the winners were published in our Aug. 19 issue. On Oct. 16, Texas Lawyer celebrated the honorees with a dinner reception at the Ritz Carlton in Dallas.

November 21, 2013

On Nov. 18, McLennan County District Attorney Abel Reyna reassigned Michael Jarrett, his former first assistant.

According to the American Bar Association Journal, the Waco Tribune-Herald and a local TV station, Jarrett aimed a gun at an office window at the McLennan County courthouse complex and pulled the trigger earlier this month.

Jarrett told the Waco Tribune-Heraldit was “just an unfortunate accident” and explained that had asked to see his colleague’s new Glock pistol and asked whether it was loaded when he was examining the gun. Assured it was not loaded, and despite a double check, he didn't see a bullet slide into a chamber before he aimed at the window and pulled the trigger.

Reyna issued a statement on Nov. 18 regarding his decision: “In light of the accidental discharge of a weapon that occurred in our office on November 4, 2013, certain changes have been made to deal with the occurrence of this unfortunate incident and the events that followed. Greg Davis has been appointed the new First Assistant Criminal District Attorney. Greg will assume all duties and responsibilities of First Assistant DA. Michael Jarrett has been re-assigned and will handle a special case load designated by myself that will utilize his excellent trial skills, and expert prosecutorial abilities.”

Jarrett did not return a call seeking comment.

In his statement, Reyna added: “I will stand by Michael. He is aware of the mistake he made and has accepted responsibility for his actions. With that said, Michael is also an extremely talented trial lawyer and one of the top prosecutors in the State of Texas. Much of our success at the DA’s office could not have been accomplished without the efforts and tireless work ethic of Michael Jarrett. These and additional actions were necessary to ensure that this type of incident does not happen again and that the McLennan County Criminal District Attorney’s Office can move forward stronger than we were before.”

Reyna also noted that he would not comment further. But when pressed about whether he will continue to permit his prosecutors to carry guns, in an emailed message sent by his assistant, he said, “He will not be going into what the office policy is right now but there is a policy that is being put into place. As far as allowing prosecutors to carry guns, they are absolutely allowed to carry guns. The idea of not allowing prosecutors to carry guns was never a consideration.”

With a sense of “total sadness,” the Texas Trial Lawyers Association must enter an era of new leadership after Tommy Townsend (pictured), the group’s 23-year executive director, died on Nov. 18, said the TTLA President Brad Parker.

“I think his legacy is going to be: a remarkable leader,” said Parker. “I think everybody would agree that Tommy thought about the issues of the TTLA and the civil-justice system constantly, and how we could work to preserve the civil-justice system and keep out infringement on the right to trial by jury. He just understood, inherently, the process and how important it was.”

The TTLA expected Townsend to retire in the next several years, and leadership was forming a transition plan, said Parker. Those discussions are on hold to mourn Townsend, but sometime after Thanksgiving, leadership will determine how to find a new executive director, said Parker, president and sole shareholder of the Parker Law Firm in Fort Worth.

Townsend died less than one week after doctors diagnosed him with a serious illness. He became the TTLA’s executive director in 1990. Parker said he lead the association through both “wonderful” and “tremendously difficult” times.

For example, he used a nonpartisan manner to lead the TTLA through the 2003 legislative session, when the Republican-led Texas House passed a comprehensive civil-justice bill that included medical-malpractice reforms.

“One of the things that was really special to me was being able to walk through the Capitol with Tommy Townsend. The respect he garnered and had from everyone, it seemed, in the Capitol was amazing,” he said.

Parker said Townsend oversaw construction of the TTLA’s current headquarters. He helped formulate and develop TrialSmith, an online tool for Texas and nationwide trial lawyers to exchange information. Parker said that Townsend recognized and developed talent, attracting “professional and capable” staff to the TTLA.

“He left TTLA strong, and there are so many people committed to making sure it continues that way. TTLA is bigger than any one man. Tommy understood and recognized that more than anyone,” Parker said.

The public is invited to attend Townsend’s funeral at 11 a.m. on Nov. 22 at the First United Methodist Church in Austin. Following a private burial, there’s also a public memorial celebration at the Headliners Club in Austin.

November 20, 2013

As a prosecutor, Mike Ware (pictured) investigated old cases and sometimes found that convicts should go free. This week, he did it from the other side of the bar.

Ware, a former assistant district attorney in the Dallas County DA’s Conviction Integrity Unit, said it was “a roller-coaster ride” as he watched his three clients walk out of prison on Nov. 18.

“Except for the anxiety and waiting and frustration, it was wonderful,” said Ware, now a Fort Worth criminal-defense solo. “It was very emotional and very satisfying to finally be able to walk out with them.”

Ware represents the “San Antonio Four,” women who maintained their innocence after being convicted of assaulting two young girls. This week, Ware won habeas relief from a state district court for Elizabeth Ramirez, Cassandra Rivera and Kristie Mayhugh. The fourth woman, Anna Vasquez, was already out on parole.

Ware used a 2011 law to argue for habeas relief because the women's convictions were based on bad science. An expert in their 1997 and 1998 trials testified that she found physical evidence confirming the girls were sexually assaulted. Ware said that modern science shows the finding is “completely erroneous.” He said the evidence and testimony “was extremely harmful” and “tainted the entire trial process.”

He sees similarities in his work as a prosecutor and defense lawyer.

As a prosecutor reviewing convictions, he said, “I was only after the truth: Let the truth lead me wherever it did. Sometimes it lead to an exoneration; sometimes it didn’t.”

Even though he clearly wants to exonerate his four clients, he said his goal is “one and the same” now as it was when he was in the DA's office.

“I’m not going to take on a huge legal undertaking pro bono unless there is a cause involved. In this case, the cause is the truth: the horrible injustice that was done to these women, who were incarcerated on charges that were preposterous from the beginning,” said Ware.

--Angela Morris

Editor's note: This blog has been corrected to accurately reflect Cassandra Rivera's name.

November 19, 2013

Deborah Williamson (pictured), a shareholder in San Antonio’s Cox Smith Matthews, who will step into the role of managing director in early 2014, emailed answers to questions about the future of legal profession, which Texas Lawyer had posed to other legal leaders in this article.

Texas Lawyer: Do you think the law practice will be dramatically different in 10 years and if yes, how so?

Deborah Williamson: I believe clients and referral sources will sharpen their focus on hiring lawyers with defined expertise, experience and results. However, there will be areas of expertise not yet invented. For attorneys who are focused on the business client, the years of developing and then relying upon a broad area of expertise like bankruptcy or commercial litigation are probably coming to an end. We will need to be able to define our experience in increasingly narrow ways, but with expanded channels to educate clients and potential clients, the market for that expertise will be less limited by geography.

TL: Do you think there is anything lawyers practicing now can do to prepare themselves for the changes ahead so they and their colleagues will remain compensated for their work at the same level or better?

DW: I think it is going to be a challenge unless you are perceived to be an expert in a defined area with relevant experience and identifiable results. And the area will be constantly evolving. For example, one of our attorneys, Erin Fonte, has evolved at a rapid rate over the last ten years. She started as a traditional banking and regulatory attorney working directly with financial institutions on account documents, regulatory and operations-related technology contracts that – believe it or not – still included mainframe applications. She then had to become an expert on privacy and data security as clients become aware of the consequences of the first U.S. privacy law for financial institutions (the Gramm-Leach-Bliley Act). In just four years, her practice grew to include a much heavier technology focus as financial institutions started relying on outside technology vendors. This meant more technology contracts for banks, but also new work representing technology vendors advising on how to meet applicable regulations. With the rise of the first merchant-issued closed-loop gift cards (like a Macy’s gift card) and prepaid cards, Erin’s financial services practice expanded outside traditional financial institutions to alternative payment providers across the country. At the same time, e-commerce was in full swing, and Erin was advising more and more non-banks, like retailers, on online payment acceptance, electronic payments (credit and debit cards, automated clearing house, etc.). This was all by 2006. Since 2008, with the advent of smart phones, clients are demanding expertise in mobile banking products, like depositing your check by phone. Mobile banking for financial institutions along with expertise in alternative payment channels has led to an even broader mobile payments practice component, such as creating virtual gift cards. And now the major retailers are developing “mobile wallet” products focused on reinventing commerce (again) and the day-to-day shopping experience. We are going to have to be nimble enough to respond to the changing industries marketplace, while at the same time taking a hard look down the road to say “here are the current changes – but here is what I think will be critical 3 – 5 years down the road.

TL: Would you tell a high school graduating senior to prepare themselves to enter law school today? Explain your answer.

DW: Yes and I would still say, "Congratulations." The aspects of the practice of law which I enjoy will remain: interesting issues to analyze; problems to solve; diverse people to meet; and other counsel and judges to persuade. While in high school, I thought I wanted to be a lawyer but had no idea what the process entailed. I had only met one lawyer – and he handled my parents’ divorce. What I didn’t know was that getting into law school isn’t a given and even passing the bar exam doesn’t mean you can practice law. Every high school student who thinks that maybe they want to be a lawyer should read the “Significant Character & Fitness Information” posted by the Texas Board of Law Examiners; “Good Moral and Character Requirements and Rules IV”. It is frightening, but every 17 year old should know that every offense, arrest, ticket or citation must be disclosed when you start law school. If a determination is made that you are not of “good moral character,” you will not be able to complete law school. Even deferred adjudication can prevent you from finishing law school much less getting a license. Second, retain your creditability. Once you make it through law school and pass the bar exam, you will probably be looking for a job. The odds are pretty good that employers and clients will find those inappropriate pictures posted on the internet by a friend (my daughter found a picture of her English teacher at a party). Rather embarrassing and a potential employment issue. Third, learn to lead. Don’t just join clubs – identify projects and lead them to completion. Fourth, become a fast and thorough reader. Vast amounts of reading will always be a part of law school.